https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3200

Simекна & 3 others (Suing on Their Own Behalf and on Behalf of the Members of the Local Congregation of Mariakani Centre Church of God in East Africa Kenya) v Makokha & 8 others (Environment and Land Case 404 of 2018) [2026] KEELC 3200 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3200 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 404 of 2018 OA Angote, J May 28, 2026 Between Joseph M.E Simекна 1st Plaintiff Joy Rael Andambi 2nd Plaintiff Wilberforce Mакате 3rd Plaintiff Tom Isaaka Mong'Are 4th Plaintiff Suing on Their Own Behalf and on Behalf of the Members of the Local Congregation of Mariakani Centre Church of God in East Africa Kenya and Most Right Reverend Dr Byrum A Makokha 1st Defendant Rt Reverend James Obunde 2nd Defendant Rev Wycliffe Omusebe 3rd Defendant Rev Raphael Muyela 4th Defendant Rev Monica Opanga 5th Defendant Rev Benson Maosa 6th Defendant William Shimanyula 7th Defendant The Registered Trustees of the Church of God in Eastafrica (Kenya) 8th Defendant U Design Architects and Interior Decorators 9th Defendant Ruling 1.Before this court for determination is the Plaintiffs’/Applicants’ Notice of Motion dated 13th February, 2026 brought pursuant to the provisions of Sections 1A & B, 3A of the Civil Procedure Act as read with Order 42 Rule 6(6) of the Civil Procedure Rules seeking the following reliefs:i.That stay be granted on the Notice to Show Cause dated the 30th July, 2025 issued by the Respondents against the 1st Appellant, Joseph M.E Simekha, and the other Appellants pending the determination of Civil Appeal No 215 of 2020.ii.That alternatively, the said Notice to Show Cause be set aside pending appeal.iii.That the Respondents be restrained from taking any personal execution proceedings against the Appellants in respect of the Notice to Show Cause pending determination of the appeal.iv.That the costs of this application be provided for; andv.That any other or further orders that this Honourable Court may deem fit and just to grant. 2.The application is based on the grounds on the face thereof and supported by the Affidavit of Joseph M. E Simekha, the 1st Applicant on his own behalf and on behalf of the Applicants herein. 3.He deponed that the Applicants had instituted ELC Case No. 404 of 2018 in a representative capacity on behalf of the members of Mariakani Christian Centre, a duly recognized congregation of the Church of God in East Africa (Kenya) and that judgment was entered therein culminating in Civil Appeal No. 215 of 2020. 4.Notwithstanding the pendency of the appeal, the Defendants/Respondents issued a notice to show cause dated 30th July 2025 seeking personal execution against the 1st Applicant and others and that the said notice is premature and irregular since the decree is under appeal, and any execution will pre-empt the appellate process and occasion irreparable harm. 5.He further averred that the Applicants had acted with the full authority of the congregation as evinced by the certificate of exemption under the Societies Act together with congregational minutes authorizing the institution of the suit. 6.He contended that under Order 1 Rule 8 of the Civil Procedure Rules, a representative litigant cannot be held personally liable unless it is demonstrated that he acted in bad faith or exceeded his authority, which, according to him, was not the case herein. He further asserted that permitting execution to proceed would render the appeal nugatory and offend Article 159(2)(d) of the Constitution. 7.The deponent further stated that following the dismissal of their earlier application, the Respondents had moved to set down the notice to show cause for hearing, which notice was scheduled for mention and hearing on 18th February 2026. 8.Similarly, it was deposed, Order 42 Rule 6(1) of the Civil Procedure Rules does not oust the jurisdiction of the court, but rather permits an applicant to seek stay pending appeal before the court whose decree was sought to be executed. 9.The 1st Applicant urged that should the notice to show cause proceed, he would be compelled to appear before the Deputy Registrar to explain why he personally ought not to pay the decretal sum or be committed to civil jail. 10.He maintained that he had never sued in his personal capacity but had instead acted on behalf of Mariakani Christian Centre, a registered religious society. Consequently, it would amount to a gross miscarriage of justice to convert a representative suit into a personal debt. 11.He further contended that the intended appeal raises arguable and triable issues, particularly whether a representative litigant can be personally executed against in the absence of fraud or excess of authority, and whether execution ought to proceed while the substantive judgment remains under challenge before the Court of Appeal. 12.The deponent further averred that unless the court grants the orders sought, he stands to suffer substantial and irreparable loss as his personal liberty and property are at risk in respect of a debt which belongs to the church congregation he represented. 13.He further stated that the court had already issued orders maintaining the status quo pending appeal and that proceeding with the notice to show cause will occasion prejudice to the Appellants and cause irreparable harm. He finally averred that the application had been brought without unreasonable delay. 14.In response to the motion, Mr George Kirumba Mbiyu, counsel with conduct of the matter swore a replying affidavit dated 3rd March, 2026 on behalf of the Respondents. 15.He deponed that for stay of execution to be granted under Order 42 Rule 6 of the Civil Procedure Rules, an applicant must demonstrate that substantial loss may result unless the order is made; the application is brought without unreasonable delay; and adequate security is provided for the due performance of the decree. 16.Further, that under Order 42 Rule 6, the mere filing of an appeal does not operate as a stay of execution and does not in any way halt lawful execution and that the Applicant failed, within reasonable time, to seek and obtain any stay of execution and instead waited until the Respondents initiated execution by issuance of a notice to show cause, which conduct is clearly aimed at frustrating the ends of justice. 17.It was deponed that the Applicants have failed to satisfy the conditions for grant of stay as no substantial loss has been demonstrated, the application has not been brought timeously, and no security has been offered for the due performance of the decree. 18.It was also contended that the Applicants have failed to show that the Respondents will be unable to refund the decretal amount should the intended appeal succeed. Further, counsel argued that no proof of the appeal has been annexed, including a memorandum of appeal. 19.Mr Mbiyu explained that a notice to show cause is a lawful mode of execution provided by law under Section 38 of the Civil Procedure Act, and Order 22 Rule 31 of the Civil Procedure Rules and is neither premature nor irregular. 20.In the alternative and without prejudice to the foregoing, he asked that the Applicants be ordered to pay half of the costs and deposit the balance in a joint interest earning account in the name of Counsel for the Applicants and Respondents pending the determination of any appeal, failing which the Respondents should be entitled to proceed with execution without further delay. 21.The Applicants did not file submissions (As at 21st May, 2026). The Respondents filed their submissions on 7th April 2016. Counsel submitted that the principles governing the grant of stay of execution pending appeal are well settled under Order 42 Rule 6 of the Civil Procedure Rules and as discussed in James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] KESC 1094 (KLR), to wit an applicant seeking stay must demonstrate substantial loss, show that the application was brought without unreasonable delay, and furnish security for the due performance of the decree. 22.On the issue of substantial loss, counsel, relying on Kenya Shell Limited vs Kibiru [1986] KLR 410, submitted that substantial loss cannot be presumed merely because execution has commenced. It was contended that the Applicant had failed to demonstrate that the Respondents would be unable to refund the decretal sum of Kshs. 6,595,025/= together with collection fees in the event the appeal succeeded, particularly given that the Respondents are trustees of a church with the financial capacity to make such refund. 23.Counsel further submitted that the application had been brought after inordinate and unexplained delay. Reliance was placed on Machira t/a Machira & Co. Advocates vs East African Standard [2002], where the court emphasized that inexcusable delay militates against the grant of stay orders. 24.It was argued that whereas the impugned decision had been delivered on 30th January 2020, the present application was only filed on 13th February 2026, more than five years later, and only after the Respondents had initiated execution proceedings through a notice to show cause. According to counsel, the application was intended merely to frustrate the Respondents from enjoying the fruits of their judgment. 25.On the issue of security, counsel cited Focin Motorcycle Co. Limited vs Ann Wambui Wangui & another [2018] eKLR, submitting that security under Order 42 Rule 6 is mandatory and intended to guarantee due performance of the decree. It was contended that the Applicant had neither offered nor demonstrated willingness to furnish any security and had therefore failed to satisfy the mandatory requirements for grant of stay. Counsel consequently urged the court to dismiss the application with costs pursuant to Section 27 of the Civil Procedure Act. Analysis and Determination 26.Having considered the pleadings and submissions, the sole issue that arises for determination is whether the Applicants have met the threshold for the grant of stay of execution pending appeal. 27.The law with respect to stay of execution pending appeal is found under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules which provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 28.In Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal, discussing the High Court’s [read ELC’s] jurisdiction under this order stated:“The Superior Court’s discretion to order a stay of execution of its order or decree is fettered by three conditions. Firstly, the applicant must establish a sufficient cause, secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly the applicant must furnish security. The application must of course be made without unreasonable delay.” 29.What arises from the foregoing is that the grant of orders of stay of execution is subject to the court’s discretion, the court in this respect being guided by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. The question of how the court should exercise this discretion was extensively discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal [1982] KLR 417 as follows:“1.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4.The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5.The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 30.Further to the above, this court is now enjoined to give effect to the overriding objectives in the exercise of its powers as expressed in Section 3 of the Environment and Land Court Act and Section 1A of the Civil Procedure Act, to wit, the just, expeditious, proportionate and affordable resolution of disputes 31.By way of a brief background, the dispute concerned the management and control of property known as L.R. No. 209/6723 I.R. 21781 registered in the name of the Registered Trustees of the Church of God in East Africa (Kenya). 32.The Plaintiffs/Applicants, who filed a suit on their own behalf and on behalf of members of Mariakani Christian Centre Church, challenged the actions of the church trustees in relation to the development and management of the property and sought, among other reliefs, declarations that the local congregation was the rightful owner of the property together with orders for its transfer to the congregation. 33.The Defendants/ Respondents opposed the suit and filed an application seeking to strike it out on grounds that it was scandalous, frivolous, vexatious, an abuse of the court process, and incompetent for failure to comply with the requirements governing representative suits under Order 1 Rule 8 of the Civil Procedure Rules. 34.They further contended that the dispute essentially arose from internal church leadership and governance issues which ought to have been resolved through the dispute resolution mechanisms established under the church constitution. 35.Upon considering the evidence, the court found that the underlying dispute was fundamentally a leadership and governance disagreement within the church, rather than a genuine property dispute. The court observed that the suit property had long been registered in the name of the church trustees who held it in trust for the church and that the Plaintiffs’ grievances related principally to the manner in which the trustees exercised their mandate under the church constitution. 36.The court consequently held that the suit was an abuse of the court process, failed to comply with the procedural requirements for representative suits, and was therefore not justiciable before the court. The suit was accordingly struck out with costs. 37.The court also considered the interpleader proceedings instituted by Airtel Networks Kenya Limited seeking directions on the party entitled to receive rent in respect of the suit property. The court observed that there was no dispute that Airtel occupied the premises under a tenancy arrangement and that the Plaintiffs had attempted to levy distress for rent. 38.The court further noted that the Plaintiffs/Applicants suit had already been dismissed, thereby leaving the trustees as the lawful persons entitled to receive rent on behalf of the church property. Consequently, the court directed that all rent due and outstanding be paid to the Defendants as trustees of the property and held that the prayer seeking to restrain distress for rent had been overtaken by events. Costs were awarded against the Applicants. 39.Following the delivery of the ruling aforesaid, and being aggrieved by the same, the Applicants lodged an appeal at the Court of Appeal at Nairobi, being Civil Appeal No. 215 of 2020 on 30th June 2020. 40.On their part, the Respondents filed a bill of costs dated 30th April 2020. The Applicants filed an objection to the bill contending inter-alia that they had filed an appeal to the ruling of 30th January, 2020. The objection was struck out on the basis that there was no stay of proceedings. The bill was taxed at Kshs 6, 595, 025 on the 9th December, 2020. Airtel Networks, the interpleader, similarly filed their bill of costs taxed by the court at Kshs 161,405 on the 17th August, 2021. 41.On 8th February, 2021, the Applicants filed a motion seeking to have the ruling of 9th December, 2020 set aside and execution thereof stayed pending the appeal of the ruling. The Motion was dismissed on 21st September, 2023. 42.Thereafter, the Respondents took out a notice to show cause requiring the Applicants to appear on 30th October, 2025 and show cause as to why execution should not issue against them. 43.The Applicants again moved the court asking that the notice to show cause be struck out asserting the pendency of the appeal. Also referenced was the assertion that the notice was improperly brought against one Joseph M.E Simekha yet he was sued in a representative capacity. The same was dismissed. 44.The Applicants now seek an order staying execution of the notice to show cause. Turning to whether the threshold for grant of stay has been satisfied, the court first notes that the Applicants contend that the notice is improper. It is however noted that the question regarding the propriety of the notice to show cause, and whether execution could properly issue against the Applicants notwithstanding the representative nature of the suit, was previously raised before and determined by the Taxing Master in the ruling delivered on 21st January 2026. 45.No appeal or review was preferred against that determination. Consequently, the issue cannot be reopened indirectly through the present application disguised as one for stay of execution. 46.Moving to the pre-requisites under Order 42 Rule 6(2), the court will begin with the aspect of sufficient cause. What constitutes the same was explicitly discussed by the court in Antoine Ndiaye vs. African Virtual University [2015] eKLR, which persuasively stated:“The relief of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the Applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42 Rule 6 of the Civil Procedure Rules, that:a)The application is brought without undue delay;b)The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; andc)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant”. 47.Beginning with delay, the question of what amounts to unreasonable delay depends on the circumstances of each case. As observed in Jaber Mohsen Ali & another vs Priscillah Boit & another [2014] eKLR, even a delay of a single day may be deemed unreasonable depending on the prevailing circumstances. 48.In the present circumstances, the notice to show cause in issue was issued on 30th July 2025, while the present application was not filed until 13th February 2026, approximately seven months later. No explanation has been offered for that period of inaction. However, the court notes that the Applicants had sought to have the notice struck out by the taxing master. Consequently, the delay in filing the current application was occasioned by the intervening application. 49.A perusal of the judgment reveals that the decree sought to be executed is, in substance, a money decree arising from taxed costs. In such cases, courts are generally slow to grant stay unless it is demonstrated that the decree-holder lacks the financial capacity to refund the decretal sum should the appeal ultimately succeed. This position was affirmed by the Court of Appeal in Kenya Hotel Properties Limited vs Willesden Investments Limited [2007] KECA 401 (KLR), where the court held that:“Courts have felt that the success of the appeal would not be rendered nugatory if the decree is a money decree so long as the Court ascertains that the respondent is not a ‘man of straw’ but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant.” 50.Although the Applicants have not demonstrated that the Defendants/Respondents, who are registered trustees of the Church of God in East Africa (Kenya), are incapable of refunding the decretal sum should the appeal ultimately succeed, the court notes that the Plaintiffs filed the present suit in their representative capacity. 51.That being the case, and considering that the Plaintiffs’ liberty is at stake, they are likely to suffer substantial loss in the event the notice to show is prosecuted to its logical conclusion before the appeal is heard and determined. Consequently, it is in the interest of justice that the pending notice to show cause should be stayed pending the hearing and determination of the appeal 52.Accordingly, the Notice of Motion dated 13th February 2026 is allowed as follows:a.A stay of execution is here granted on the Notice to Show Cause dated 30th July, 2025 issued by the Respondents against the 1st Appellant, Joseph M.E Simekha, and the other Appellants pending the hearing and determination of Civil Appeal No 215 of 2020.b.The Respondents are hereby restrained from taking any personal execution proceedings against the Appellants pending the hearing and determination of the appeal.c.Each party to bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 28TH DAY OF MAY, 2026.O. A. ANGOTEJUDGEIn the presence of;Mr. Rabella for the PlaintiffsMr. Mbiyu for the RespondentCourt Assistant: Tracy